Ricketts v Upper Tribunal (Immigration And Asylum Chamber)

In a Cart application, an error in assessing an offender’s conduct is material only if it affects the determination. A tribunal must not enlarge or reappraise offending beyond the basis on which the sentencing judge proceeded. However, an otherwise unlawful assessment will not justify judicial review where independent findings satisfy cumulative requirements under the Immigration Rules, and the error has no bearing on the result. Where the requirements of paragraphs 399A are cumulative, an unimpeachable finding under paragraph 399A(c) may sustain the decision. The separate requirement under paragraph 398 for very compelling circumstances must also be assessed.

The claimant, a Jamaican national resident in the United Kingdom since childhood, challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision upholding his deportation. The First-tier Tribunal had considered his criminal convictions, his integration in the United Kingdom, his relationship with his young child, and the obstacles to integration in Jamaica.

The claimant argued that the First-tier Tribunal had treated his involvement in the index blackmail offence as more extensive and serious than the sentencing judge had found. The central issue was whether that error, if established, was material and raised an important point of principle or practice for the purposes of judicial review.

1. The application was refused. The Upper Tribunal’s refusal of permission to appeal was open to it and justified.
2. The First-tier Tribunal had erred in expressing doubt that the claimant was not more fully aware of the surrounding offences. That gave the impression that it regarded his participation as more extensive and serious than the basis on which the sentencing judge had sentenced him. A tribunal is not entitled to reappraise offending so as to inflate or diminish the sentencing judge’s evaluation, applying Secretary of State for the Home Department v HK [2010] EWCA Civ 583.
3. That error was not material for the purposes of a Cart application. The First-tier Tribunal had accurately and comprehensively addressed paragraphs 399 and 399A of the Immigration Rules. Although its conclusion on social and cultural integration in the United Kingdom was questionable, its conclusion under paragraph 399A(c), concerning very significant obstacles to integration in the proposed country of deportation, was unimpeachable. The requirements were cumulative, so that conclusion stood independently.
4. The First-tier Tribunal had also reached unimpeachable conclusions under paragraph 399 concerning the claimant’s child and whether it would be unduly harsh for the child to remain in the United Kingdom without him. Its assessment under paragraph 398 of whether there were very compelling circumstances over and above paragraphs 399 and 399A was likewise unimpeachable.
5. Since the decision remained sustainable independently of the error, the question whether the error raised an important point of principle or practice did not arise.

1. High Court (Administrative Court): refused permission to apply for judicial review of the Upper Tribunal’s refusal of permission to appeal.
2. Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal against the First-tier Tribunal’s determination, holding that any error concerning the index offence was immaterial.
3. First-tier Tribunal: dismissed the claimant’s challenge to deportation after considering paragraphs 398, 399 and 399A of the Immigration Rules.